New 2009 New York DWI legislation.
Creates new crimes and increased
penalties for some convictions of driving under the influence of alcohol and drugs.
The 2009 legislation, known as Leandra’s Law, makes it a felony to operate a motor vehicle while under the influence
of alcohol or drugs with a child passenger age 15 or younger. The new crime is denominated in the legislation as aggravated
DWI (ADWI) child in vehicle (CIV)( VTL § 1192 [2-a] [b]). That new crime, is referred to here as “ADWI U-16.”
The new law also, for the first time, requires installation of an interlock ignition device (IID)
for enumerated DWI convictions, even for some first offenders.
To start an IID-equipped
vehicle, the motorist must blow into an ignition-connected device that will block ignition if alcohol is detected. The IID
also reports a positive breath-alcohol content (BAC) to probation authorities and to the sentencing court, which may result
in a defendant’s resentencing to jail for violating probation or terms of a conditional discharge.
The Vehicle and Traffic Law (VTL) penalty scheme (§ 1193) includes various features that enhance the classification
of charges because of a pleaded and proven predicate prior conviction, or where an element of proof is established incidental
to an enumerated conviction.
When a passenger under 16 is in the vehicle,
the felony ADWI U-16 is to be charged if incidental to any charge of the following VTL sections:
• 1192-2, per se DWI, .08 percent BAC or above
• 1192-3,
common-law DWI
• 1192-4, driving while ability impaired by drugs
• 1192-4-a, driving while ability impaired by drugs and alcohol
The ADWI U-16 incidental convictions do not include § 1192 (2-a) (a) — ADWI .18 percent BAC or above.
IID is mandated for any conviction under these VTL sections:
• 1192-2, per se DWI, .08 percent BAC or above
• 1192 (2-a)
(a), ADWI, .18 percent BAC or above
• 1192 (2-a) (b), ADWI U-16
• 1192-3, common-law DWI
The mandated IID
convictions do not include §§ 1192-4 (driving while ability impaired by drugs) or 1192-4-a (driving while ability
impaired by drugs and alcohol).
Frequently asked questions
1. What is the effective date of the new law?
Dec. 18, 2009, is the effective date for the new crime of ADWI U21 (VTL § 1192 [2-a] [b])
and mandatory IID if the defendant is convicted of ADWI U-16. Since 2006, IID has been mandated for any ADWI conviction based
on BAC of .18 percent or above (VTL § 1192 [2-a] [a]), if the defendant is sentenced to probation.
The new mandatory IID law will become effective for other enumerated DWI offenses on Aug. 15, 2010 (270 days after date
of enactment, Nov. 18, 2009).
Thus, the new law applies to defendants
who are:
• Charged with ADWI U-16 on or after Dec. 18, 2009; if convicted of
ADWI U-16, IDD is mandatory.
• Charged with one of the enumerated
DWI offenses on or after Dec. 18, 2009, and sentenced on or after Aug. 15, 2010. In such cases, the 2009 legislation mandates
IID installation, even for first offenders, if the defendant is sentenced to a conditional discharge or probation.
2. Does the new law require IID for every defendant
convicted of DWI?
The new law mandates IID for most DWI defendants
and for every motorist convicted of the enumerated DWI offenses. Under previous law, IID was mandated only for defendants
convicted of two DWIs within five years, or convicted of ADWI based on .18 percent BAC (VTL § 1192 [2-a] [a]).
IID is a condition of sentencing during the term of probation or conditional discharge and in
no event for less than six months.
As noted above, the IID predicates
do not include §§ 1192-4 (driving while ability impaired by drugs) or 1192-4-a (driving while ability impaired by
drugs and alcohol).
The law makes no exception for motorists who provide proof
of alcohol/drug rehabilitation.
3.
Does the new law apply to DWI defendants who are convicted of driving while ability impaired (DWAI)?
No. The impact of a reduction at disposition of any DWI charge to DWAI, avoiding ADWI U-16 or exempting the IID requirement,
is significant.
4. If a defendant
has a prior DWAI U-16 conviction, does that, by itself, enhance a subsequent DWI charge to a felony charge?
No, but future legislation will likely include DWAI U-16 as a predicate for felony DWI.
5. What reporting is mandated for the new crime?
Section 1 of the law amends VTL § 1192 (a), ADWI, adding a new paragraph (b), which creates
the new crime of aggravated DWI U-16.
The crime of ADWI based on BAC of
.18 or above (§ 1192 [2-a]) is recodified as § 1192 (2-a) (a).
The
new law also amends VTL § 1192 (12) to require that a law-enforcement officer note when a child or person other than
the offender has been killed or suffered serious physical injury. When a child under 16 is present in the vehicle at the time
of the arrest and the operator of the vehicle is the parent, guardian or custodian of that child, the officer is to make an
appropriate report to the Department of Social Services.
The new law further
amends VTL § 1193 (1)(b) and (c) to provide that aggravated U-16 DWI as an element of an enumerated DWI charge is a class
E felony, punishable by up to four years in state prison.
Section 13 of
the law adds Penal Law
§ 60.21, authorizing the imposition of any applicable period of imprisonment upon a DWI
conviction, including a state-prison term of imprisonment of up to four years if the conviction is for a class E felony, as
well as any allowable term of probation or conditional discharge, and to provide that such sentences may be imposed consecutively.
6. What sentencing conditions are mandated?
In addition to any fine or period of imprisonment for a DWI conviction, the court must also sentence
such a person to probation or conditional discharge, including a condition of installation and maintenance of an IID for a
period for at least six months.
7.
May an ADWI U-16 be reduced to a non-DUI (driving under the influence) charge?
Not usually. Any person charged with ADWI U-16 is prohibited from receiving a reduced charge to a noncriminal violation
(such as driving while ability impaired), unless the court makes enumerated findings.
8. What new conditions are mandated for motorists convicted of DUI?
VTL §§ 1198 (5)(1), (2), (3), (4) and (5)(a) were amended to require that a court order a convicted person
to install an IID on any vehicle he or she owns or operates. Even if the defendant owns a motor vehicle but does not operate
it, the vehicle must be IID-equipped, or else the title must be transferred to another person.
9. What are for the penalties for noncompliance
with conditions?
VTL §§ 1198(8) and (9) were amended
to make various violations of noncompliance with IID requirements and tampering with such devices a class A misdemeanor.
10. Is additional screening and assessment required?
VTL § 1198-a (2) was amended to mandate screening and assessment for alcohol or substance
abuse and dependency upon a charge of ADWI U-16.
11. Do ADWI U-16 charges enhance penalties?
Yes.
The new law revises penalties as follows:
• Section 7 amends PL
§ 120.04, vehicular assault (VA) in the first degree, a class D felony, to now include a person who commits the crime
of second-degree VA and causes serious personal injury to a U-16 passenger.
• Section 8 amends PL § 120.04, aggravated VA, a class C felony, to include anyone who commits the crime of
second-degree VA and engages in reckless driving and causes serious personal injury to a U-16 passenger.
• Section 9 amends PL § 125.13, first-class VA, a class C felony for anyone who commits the crime of second-degree
VM and causes the death of a U-16 passenger.
• Section 10 amends PL
§ 125.14, aggravated vehicular homicide, a class B felony, to include anyone who commits VM, engages in reckless driving
and causes the death of a U-16 passenger.
12. Who must pay for the ignition device?
The new law provides
that the cost of the IID shall be borne by the offender unless the defendant is determined by the court to be financially
unable to afford the cost.
Installation of an IID costs approximately
$70; maintenance costs approximately $75 per month. If the defendant is determined by the court to be financially unable to
afford these costs, the law does not specify who will bear the cost for IID installation or maintenance.
In Erie County, the primary provider of IIDs is Ignition Interlock of Erie County Inc. The owner is John Fasciana, who
may be contacted at: 716-553-9583. Click here for a list of installers around NYS
13. If a defendant drives an employer’s vehicle,
must the employer’s vehicle be IID-equipped?
Not during duties
“in the course and scope of employment,” but only if the employer has been notified of the revocation and written
documentation of permission has been provided by the employer to the court and probation department.
As a practical matter, most employers will terminate an employee whose license is revoked, just to avoid insurance liability.
Thus, the new IID requirement will result in loss of employment for most defendants subject to mandated IID.
For more information, see assembly.state.ny.us/leg/?bn=A40008 and nysdmv.com.
